scholarly journals Formal and Material Approaches to the Procedural Status of Participants in Criminal Proceedings Regulation: The Need to Establish a Balance

2020 ◽  
Vol 15 (11) ◽  
pp. 207-213
Author(s):  
A. Yu. Chekotkov
Keyword(s):  
Important Task ◽  
Criminal Case ◽  
Control Methods ◽  
Criminal Proceedings ◽  
Optimal Ratio ◽  
The Law ◽  
Exhaustive List ◽  
The Way

The most important task of criminal proceedings is to ensure a proper observance of the rights and freedoms of all persons involved in the process of investigation and judicial consideration of a criminal case. On the way to its solution, the desire to formalize in detail an exhaustive list of rights and obligations for each subject of procedural activity is extremely clearly traced. However, it is also obvious that at the regulatory level it is impossible to foresee all the variety of cases that one or another participant may face in reality. In this regard, when assessing the procedural status of a particular person, it is necessary to take into account not only the relevant norms of the law, but also his essential (material) position, which he occupies in the criminal proceedings. Thus, in the presence of two control methods, it is necessary to ensure their optimal ratio. It is this option that can make it possible to take into account both the positive and negative aspects of these areas and properly guarantee the observance of the rights and freedoms of persons participating in the process.

INCRIMINATION AND THE MODIFICATION OF INCRIMINATION IN HEARING

2017 ◽  
pp. 175
Author(s):  
Arita Upīte ◽  
Ilona Bulgakova
Keyword(s):  
Legal Regulation ◽  
Criminal Case ◽  
Full Understanding ◽  
Criminal Proceedings ◽  
Legal Literature ◽  
Court Hearing ◽  
The Way

The author of the research provides the explanation of the concept of criminal proceedings, its content, explores and analyzes the possibilities of amending the incrimination in court hearing process and its application in practice by studying and analyzing the legal literature, legal regulation and practice materials. Researching the Criminal Proceedings Law paragraphs 461 and 462 application in practice, the author has identified that public prosecutors, amending the incrimination in court hearing process, often indicate only the paragraph, without pointing the way the incrimination was amended, which does not allow to draw a conclusion if the way of incrimination amending has been understood correctly, as well as the incrimination amendment is used to clarify the incrimination and correct misspelling mistakes that have been made.The author of the research makes suggestions for improvement of mentioned regulations, because the incrimination must provide full understanding of its essence, without searching for additional explanations in criminal case materials.

scholarly journals HARMONIZATION OF CRIMINAL PROCEDURE AS A MEANS OF ENSURING THEIR UNIFORM APPLICATION

2021 ◽  
Vol 31 (3) ◽  
pp. 509-514
Author(s):  
D.V. Tat'yanin
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
High Quality ◽  
Red Tape ◽  
Judicial Proceedings ◽  
The Law ◽  
The Right ◽  
Different Content

The law of criminal procedure contains a number of rules with different content, which raises a number of questions in their interpretation and application. Decisions made using rules with different content lead to their appeal, often to annulment, which does not ensure the achievement of the appointment of criminal proceedings, but leads to unjustified red tape in criminal proceedings and the delay in making final decisions on them. The need to harmonize criminal procedure rules is related to ensuring high-quality and effective criminal proceedings, ensuring the protection of the rights of participants in criminal proceedings, the quality of the evidence process, both in pre-trial and judicial proceedings. The article addresses the problems of unification of criminal procedure rules containing such concepts as an investigator and urgent investigative actions. It is proposed to eliminate the contradictions in them in order to ensure their uniform application. The introduction of a single concept of investigator and refusal to use the profession of "forensic investigator" in this concept is justified, it is proposed to expand the number of participants who have the right to carry out urgent investigative actions, as well as to assign to them investigative actions carried out at the stage of initiating a criminal case.

scholarly journals PERANAN ALAT BUKTI DALAM PERKARA PIDANA DALAM PUTUSAN HAKIM MENURUT KUHAP

Yuridika ◽  
2017 ◽  
Vol 32 (1) ◽  
pp. 17
Author(s):  
Bastianto Nugroho
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Law Enforcement Officers ◽  
The State ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Examination Process

The trial of a criminal case is to find out whether a criminal offense has occurred in an event, therefore in the most important criminal proceedings the proceedings are proved. Evidence is a problem that plays a role in the examination process in court because with this proof is determined the fate of a defendant. The legal function in the State of Indonesia is to regulate the order of society in the life of the nation and the state, whereas the violation of the law itself is an event that must exist in every society and is impossible to be eliminated absolutely, because violation of law is an integral part of development More complex. One of the provisions governing how the law enforcement officers carry out the task in the field of repressive is the criminal procedure law which has the purpose of searching and approaching material truth, the complete truth of a criminal case by applying the provisions of criminal procedure law honestly darn precisely with The purpose of finding out who the perpetrator can be charged with is a violation of the law. 

scholarly journals Proceeding the prosecutor’s waiver: between law and reality

2021 ◽  
pp. 6-11
Author(s):  
Tatiana Vizdoaga ◽  
Keyword(s):  
Driving Force ◽  
The State ◽  
Criminal Trial ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
The Law ◽  
Core Issues ◽  
Trial Phase ◽  
Do So

The prosecution is the driving force behind the criminal proceedings. By presenting the prosecution with all his energy, insistence and competence, the prosecutor is obliged to do so only to the extent that the guilt is proven, taking into account the evidence supporting the defendant’s position. The prosecutor himself is obliged to strictly observe the law, to oppose any abuses and violations, regardless of the party whose interests are harmed. For the prosecutor, supporting the accusation is not an end in itself; or, the well-founded waiver of the accusation, as well as the support of the accusation, equally contribute to the achievement of the purpose of the criminal trial. This study discusses certain core issues related to the waiver of the state accuser to charge the trial phase of the criminal case.

scholarly journals Russian Llaw and International Standards of Pre-Trial Proceedings in Criminal Cases Against Minors

2018 ◽  
Vol 12 (3) ◽  
pp. 407-416
Author(s):  
Alexander Volevodz ◽  
Alexander Grinenko ◽  
Vasily Potapov ◽  
Elena Tsvetkova
Keyword(s):  
Juvenile Delinquents ◽  
International Standards ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
General Rules ◽  
The Law ◽  
Court Proceedings ◽  
Key Aspects

Pre-trial proceedings in criminal cases against minors are conducted according to general rules established by law. At the same time, international statutes set out special requirements aimed at the comprehensive protection of the rights and lawful interests of the above-mentioned category of people. Their comparison allowed the authors to identify a number of discrepancies and draw conclusions regarding the key aspects of improving Russian criminal procedure legislation regulating the pre-trial proceedings against minors. Pre-trial investigation against minors should only be conducted in the form of preliminary inquiry. Besides, all of its stages should provide conditions for the correction of juvenile delinquents, including the stage of pre-trial investigation. Organizations working outside the scope of criminal proceedings, including NGOs and human rights groups, should work with minors and correct their behavior irrespective of the process and results of pre-trial investigation and court proceedings. The law should include the provision for the confidentiality of information about the underage suspect and accused. In particular, the law should state that no information regarding the underage suspect or accused can be made public, even if this information will in the future result in court proceedings during a closed hearing. Before the case is referred to the court, the investigator or detective should decide if it is possible to terminate the criminal case (criminal prosecution) against the accused minor. Besides, the criminal case (criminal prosecution) can be terminated both on special grounds if coercive measures are taken against such a person, or on other grounds stated by law and applicable to adults.

scholarly journals Court Discretion as Part of the Criminal Procedure Paradigm Structure

Legal Concept ◽  
2019 ◽  
pp. 166-173
Author(s):  
Ekaterina Azarova
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Fundamental Rights ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
The Law ◽  
Goals And Objectives

Introduction: the fundamental rights of citizens enshrined in the Constitution are accordingly reflected in the Code of Criminal Procedure of the Russian Federation. For more than fifteen years of the Code of Criminal Procedure application, the legislator has made about three hundred amendments that have increased its ambiguity and inconsistency. The very construct of its provisions is being built and in progress without a planned scientific and theoretical component of such building, without taking into account the empiricism of application. The Code of Criminal Procedure of the RSFSR was used as a constructive basis for the new law, where the stages of criminal process are the fundamental structure of the law. The presence and introduction of new types of judicial proceedings and related institutions as an additional “load” caused the “deflection” of the entire structure of the Criminal Procedure Code, the consequence of which was the increase of unceasing contradictions between the goals and objectives of criminal proceedings, its general conceptual provisions and the criminal process immediate stages. The author sets the purpose of the study, which consists in the justification of contradictions in the law. Methods: the methodological framework consists of the methods of historicism, systematicity, and comparative law. Results: grounded in the work the author’s point of view is based on the knowledge in criminal law. Conclusions: the study revealed that the court discretion is an integral part of the criminal procedure paradigm structure, as the perception by the court of the “truth” of the circumstances to be proved in a criminal case, interpreted by the opposite parties of the adversarial process, is only possible through the prism of assessing these circumstances by the court at its discretion, during the verification of evidence in a particular criminal case.

scholarly journals Discretionary Model of Legal Regulation of a Criminal Case and Criminal Prosecution Termination: Pro et Contra

2020 ◽  
Vol 15 (11) ◽  
pp. 214-222
Author(s):  
G. N. Kucherov
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Enforcement Officer ◽  
The Russian Federation ◽  
Law Enforcement Officer ◽  
The Law

The paper discusses the issues of choosing the most effective model of criminal proceedings termination, analyzes the proposed in the scientific literature model of refusal of the discretion of the law enforcement officer when making an appropriate procedural decision. The author, based on the practice of the European Court of Human Rights, the Constitutional Court of the Russian Federation and the decisions of the Plenum of the Supreme Court of the Russian Federation, studies the relationship between the principle of justice and the legality of procedural decisions to terminate a criminal case and criminal prosecution. The author concludes that the discretionary model of legal regulation of a criminal case and criminal prosecution termination is an effective means of achieving the purpose of criminal proceedings, allowing the law enforcement officer to make a fair decision, given the nature, degree of social danger of the crime, the circumstances of its commission, information about the identity of the person who committed the crime. Refusal of the discretion of the law enforcement officer in the matter of terminating a criminal case will not only not contribute to the humanization of legislation, but will mark the victory of formalism over justice in criminal proceedings.

scholarly journals Mistrust as Grounds for Recusation

2021 ◽  
Vol 16 (5) ◽  
pp. 139-147
Author(s):  
A. S. Taran
Keyword(s):  
Russian Federation ◽  
Interpersonal Conflict ◽  
Defense Attorney ◽  
General Idea ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Will ◽  
The Russian Federation ◽  
The Law

Traditionally, the grounds for recusation are objective circumstances established in the course of criminal proceedings, which exclude the participation of certain subjects in the trial, regardless of the discretion and expression of the will of the parties. The paper substantiates that "other circumstances giving grounds to believe that they are personally, directly or indirectly, interested in the outcome of this criminal case" provided for by Part 2 of Art. 61 of the Criminal Procedure Code of the Russian Federation as a basis for challenging a judge and other persons do not imply the mandatory establishment of interest, it is enough that there are circumstances giving grounds to believe its existence. It is in this interpretation of the law that the general idea underlying the institution of recusation is realized, i.e. ensuring confidence in the composition of the court. Ignoring mistrust in the composition of the court as a basis for recusation leads to violations of the law when resolving recusations in the event of an interpersonal conflict in court, when establishing a corporate relationship between a party and the composition of the court, when recalling a defense attorney, etc.

scholarly journals SPECIFIC FEATURES OF ASSETS AS OBJECT OF CIVIL RIGHTS

2021 ◽  
pp. 164-170
Author(s):  
O. Ye. Kukhariev
Keyword(s):  
Civil Rights ◽  
Limited Range ◽  
Civil Code ◽  
Complex Object ◽  
Local Character ◽  
The Law ◽  
The Right ◽  
Exhaustive List ◽  
Legal Entities ◽  
The Way

The article is focused on identifying specific features of assets as object of civil rights by defining and characterizing its features. Revealing the essence of assets through the composition as a set of rights and obligations that belonged to the ancestor at the time of assets’ opening and were not ceased as a result of the death, most adequately reproduces the specifics of this object. Specific features of assets are determined by a set of features: 1) local character; 2) clearly defined temporal boundaries of existence; 3) a complex object; 4) limited civil circulation, since Book 6 of the Civil Code of Ukraine enshrines a closed list of transactions that may be implemented in respect to assets; 5) the composition of assets is determined at the time of opening assets and covers only those rights and obligations, which were carried by the ancestor during his lifetime; 6) a limited range of subjects for assets as for an object of civil rights; 7) the only procedure for acquiring the inheritance right is succession. Normative regulation of assets is characterized by discretionary nature, since the law defines an open (non-exhaustive) list of rights and obligations that make up its composition. In some cases the composition of assets also includes certain legal entities that have not acquired the form of subjective civil right at the time of assets’ opening. For example, a person started the process of privatizing his / her berth and did not have time to complete the process due to his / her death. In such cases, lawful heirs have the right to complete the process of privatization of berth started by the ancestor and become the owner of the property. Since the ancestor managed to express his / her will to privatize the berth during his lifetime (submitted the relevant documents), but died, the right to privatization was transferred into the stage of realization, being stopped on the way to subjective right, and therefore may become the object of succession. It has been argued that the obligations are additional elements of assets’ composition, since they pass to the lawful heir only together with the ancestor’s rights. In turn, rights are the key element of assets’ composition.

FEATURES OF INITIATION OF CRIMINAL CASES RELATED TO THE JURISDICTION OF THE COURT WITH THE PARTICIPATION OF JURORS

2021 ◽  
pp. 57-61
Author(s):  
Алексей Александрович ИЛЬЮХОВ
Keyword(s):  
Law Enforcement ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Law

В статье исследуются актуальные для уголовного судопроизводства с участием присяжных заседателей вопросы возбуждения уголовного дела. Анализируя правоприменительную практику, мнения ученых-процессуалистов, автор отмечает, что, как правило, основанием отмены прокурором решений, принимаемых следователем по результатам проведения доследственной проверки, выступает неполнота ее проведения. Раскрываются условия, при которых доследственная проверка признается неполной, а также вносятся предложения, направленные на повышение качества проведения проверочных мероприятий на стадии возбуждения уголовного дела. The article examines the issues of initiation of a criminal case that are relevant for criminal proceedings with the participation of jurors. Analyzing the law enforcement practice and the opinions of procedural scholars, the author notes that, as a rule, the reason for the cancellation by the prosecutor of the decisions taken by the investigator based on the results of the pre-investigation check is the incompleteness of its conduct. The conditions under which the pre-investigation check is considered incomplete are disclosed, as well as proposals are made aimed at improving the quality of verification measures at the stage of initiating a criminal case.

Sign in / Sign up

Export Citation Format

Share Document